Utah parole board won't stop execution by firing squad

Gardner, convicted of killing 2, is scheduled to be executed by firing squad on Friday

Family members of victims differ on support of the death penalty for Gardner

Gardner says he's a changed man; prosecutors say he just wants to live

(CNN) -- Utah's Board of Pardons and Parole refused Monday to commute a twice-convicted killer's death sentence, moving him one step closer to execution by firing squad.

Ronnie Lee Gardner, 49, is scheduled to die shortly after midnight on Friday before Utah's firing squad, a relatively rare method of execution.

His lawyer, Andrew Parnes, argued that Gardner was a changed man during two-day commutation hearing last week at the Utah State Prison. Parnes said Gardner regrets killing two men in two escape attempts in 1984 and 1985. But Assistant Attorney General Thomas Brunker pointed to Gardner's "long history of relentless violence."

The parole board determined that the verdict and sentence in Gardner's second murder trial, for the slaying of lawyer Michael Burdell, was "not inappropriate," according to its written decision released Monday. The board also said that Gardner admits his crimes and there is no question of his guilt.

"The board further determines that no sufficient reason exists to grant clemency or to commute Gardner's death sentence," the document said. The decision was unanimous.

Gardner, who had a long history of escapes, was slipped a gun and fatally shot Burdell at a courthouse in Salt Lake City, Utah, on April 2, 1985. He was there for a pretrial hearing in the 1984 slaying of Melvyn Otterstrom, who was killed at the Salt Lake City bar where he was working to earn extra money.

Friends and relatives of Gardner's victims were split over whether he should be executed. Burdell's father and fiancee, along with a close friend of his, told the five-member parole board that Burdell was a pacifist who would not want Gardner put to death.

Otterstrom's cousin, as well as relatives of Nick Kirk, a bailiff wounded in the courthouse incident, supported his execution. But in an emotional statement before the board, Otterstrom's son, Jason, who was 3 when his father was killed, acknowledged he was torn on the issue.

Parnes went before the Utah Supreme Court last week to argue that Gardner should be given a new sentencing hearing. The court has not yet ruled on that request.

"I'm glad that they went with the jury's decision," Tami Stewart, Kirk's daughter, told CNN by telephone Monday. She testified before the board last week that her father's injuries resulted in constant pain and five surgeries. He died in 1995.

"He made his choices, but I still feel bad [for him]," Stewart said of Gardner. "He did make his own choices, and he needs to follow through with his punishment, but it's still hard."

"We think it's obviously the correct outcome," Brunker, the assistant attorney general, told CNN. The board, he said, has not commuted a death sentence since the death penalty was reinstated in 1976, although it's not inconceivable that it could. "It's a pretty high burden, I think, to get a death sentence commuted," he said. The board's decision cannot be appealed, he added.

Attempts by CNN to reach Parnes were not immediately successful Monday.

Board members heard testimony regarding Gardner's childhood, which was punctuated by poverty, abuse and neglect. Parnes maintained that jurors in the Burdell trial never heard this evidence -- and presented affidavits from jurors who said it might have persuaded them to decide against the death penalty.

Life in prison without the possibility of parole was not an option for jurors at the time, and Parnes said it was suggested to the jury that Gardner might be released from prison at some point if he were given a life sentence. Gardner pleaded guilty to second-degree murder in Otterstrom's death, and jurors were not told of a judge's recommendation in that case that he not be released from prison, Parnes said.

Brunker pointed out in closing arguments Friday that trial jurors didn't hear the evidence regarding Gardner's childhood because he refused to let his attorneys present it. As for the jurors, he said, their main concern was to keep Gardner -- a man who had twice escaped and twice killed during those escapes -- from killing again.

The evidence is an "attempt to shift the blame ... to everybody but Mr. Gardner," he said.

Gardner told the board he doesn't want to "live for the sake of living." He and his brother want to use land they own in northwest Utah for an organic farm for at-risk youths, he testified, in a bid to keep them from making the same mistakes he made. Even if he is executed, he said, his brother will proceed with the plan.